Automatic Restoration of Gun Rights in South Dakota after Certain Convictions
As a criminal defense attorney in South Dakota, Sonny Walter is well-versed in the state’s laws regarding gun rights and the automatic restoration of those rights after certain convictions. In this article, we will explore the circumstances under which an individual may have their gun rights restored after being convicted of possession of controlled substances, felony DWI, or simple assault domestic charges. We will also touch upon the principle of preemption, which applies when there is a conflict between state and federal laws. Every hunting season criminal defense lawyers get calls from the public regarding their ability to hunt with a firearm after they have been convicted of certain charges in the past. Many in law enforcement do not know the correct answer to the public’s questions on this topic.
Possession of Controlled Substances Felonies
In South Dakota, individuals convicted of certain felonies related to the possession of controlled substances may have their gun rights automatically restored upon completion of their sentence, including any probation or parole. This includes both imprisonment and fines. However, it is important to note that some drug-related offenses, such as drug trafficking and other violent felony offenses may result in a permanent loss of gun rights. It is a felony to possess a firearm if you are prohibited from possessing firearm based upon your past conviction.
22-14-15. Possession of firearm by one with prior violent crime conviction or certain drug-related conviction–Felony–Fifteen-year period.
No person who has been convicted in this state or elsewhere of a crime of violence or a felony pursuant to § 22-42-2, 22-42-3, 22-42-4, 22-42-7, 22-42-8, 22-42-9, 22-42-10 or 22-42-19, may possess or have control of a firearm. A violation of this section is a Class 6 felony. The provisions of this section do not apply to any person who was last discharged from prison, jail, probation, or parole more than fifteen years prior to the commission of the principal offense.
Source: SL 1976, ch 158, § 14-9; SL 1977, ch 189, § 34; SL 1998, ch 130, § 1; SL 2005, ch 120, § 255.
22-14-15.1.Possession of firearm by one with prior drug conviction–Felony–Exception.
No person who has been convicted of a felony under chapter 22-42 or of a felony for a crime with the same elements in another state may possess or have control of a firearm. A violation of this section is a Class 6 felony. The provisions of this section do not apply to any person who was last discharged from prison, jail, probation, or parole, for a felony under chapter 22-42 more than five years prior to the commission of the principal offense and is not subject to the restrictions in § 22-14-15.
Source: SL 1998, ch 130, § 2; SDCL, § 22-14-30; SL 2005, ch 120, §§ 267, 268.
Similarly, individuals convicted of a felony DWI in South Dakota may also have their gun rights automatically restored upon completion of their sentence. This applies to individuals who have been convicted of driving under the influence of alcohol or drugs and have served the full term of their sentence, including any probation or parole.
Simple Assault Domestic Charges
In some cases, individuals convicted of simple assault domestic charges may also have their gun rights restored automatically after a period of time. Although your gun rights may be restored you will still be prohibited from purchasing a firearm because the federal form one has to fill out to purchase a firearm asks whether you have been convicted of a domestic assault. If you answer yes, the dealer will be prohibited from selling you a firearm. If you answer no that you have not been convicted and you have in fact been convicted of a domestic simple assault you can and probably will be charged with a federal criminal offense for lying on that form. Simple assault domestic charges are those that involve violence or the threat of violence within a domestic relationship. In South Dakota, individuals convicted of simple assault domestic charges may have their gun rights restored after a certain period of time has passed under state law, provided they have completed any required sentence, including probation or parole.
22-14-15.2. Possession of firearm by one convicted of misdemeanor crime involving domestic violence–Misdemeanor–Civil rights restored–Repeal of section–Order restoring rights.
No person who has been convicted of any misdemeanor crime involving an act of domestic violence may possess or have control of a firearm for a period of one year from the date of conviction. Any violation of this section is a Class 1 misdemeanor. At the end of the one year period, any civil rights lost as a result of this provision shall be restored. Any person who has lost their right to possess or have control of a firearm as a result of a misdemeanor conviction involving an act of domestic violence, prior to July 1, 2005, shall be restored to those civil rights one year after July 1, 2005. This section shall be repealed on the date when any federal law restricting the right to possess firearms for misdemeanor domestic violence convictions is repealed.
Once eligible under the statute, a person convicted under this section may petition the convicting court for an order reflecting the restoration of any firearm rights lost, if the person has not been convicted within the prior year of a crime for which firearm rights have been lost. A petition filed under this section shall be verified by the petitioner and served upon the states attorney in the county where the conviction occurred. Thirty days after service upon the states attorney, the court shall enter the order, if the court finds that the petitioner is eligible for relief under this section. (This section is repealed under its own terms on the date when any federal law restricting the right to possess firearms for misdemeanor domestic violence convictions is repealed.)
Source: SL 2005, ch 120, § 269.
Principle of Preemption
It is important to note that the restoration of gun rights in South Dakota may be subject to the principle of preemption. This principle applies when there is a conflict between state and federal laws. In these cases, federal law takes precedence over state law. As a result, individuals may still be subject to federal restrictions on gun ownership, even if their rights have been restored at the state level.
In conclusion, South Dakota law provides for the automatic restoration of gun rights for individuals convicted of certain possession of controlled substances felonies, felony DWIs, and simple assault domestic charges. However, it is important to understand that these rights may still be subject to federal restrictions, depending on the nature of the conviction and the principle of preemption. If you have any questions or concerns about the restoration of your gun rights, it is important to consult with a knowledgeable and experienced criminal defense attorney like Sonny Walter.